Pesso v. Montgomery General ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
RAYMOND PESSO, Dr.,
Plaintiff-Appellant,
v.
No. 98-1978
MONTGOMERY GENERAL HOSPITAL;
MICHELLE STEPHENS,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of West Virginia, at Beckley.
Elizabeth V. Hallanan, Senior District Judge.
(CA-97-718-5)
Argued: April 8, 1999
Decided: May 24, 1999
Before WILKINSON, Chief Judge, and
NIEMEYER and MICHAEL, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Daniel Lennon Saxe, SAADY & SAXE, Tampa, Florida,
for Appellant. Joseph Michael Farrell, Jr., FARRELL, FARRELL &
FARRELL, Huntington, West Virginia, for Appellees.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Raymond Pesso claims that while serving as the director of anes-
thesiology at Montgomery General Hospital, he was sexually
harassed by a Hospital vice president, Michelle Stephens. Finding no
merit in his various contentions, we affirm the judgment of the district
court.
I.
Raymond Pesso was employed as director of anesthesiology at
Montgomery General Hospital. Pesso worked at the Hospital from
July 1994 until he resigned in November 1996 to take a position in
his native New York.
Pesso alleges that the Hospital's vice president of patient care,
Michelle Stephens, was "mesmerized" by him and made comments
which he claims were inappropriate. Specifically, he alleges that in
September 1994 Stephens told him that he appeared"handsome"
before a meeting. Six months later, Pesso and Stephens attended a
conference in Charleston. Pesso claims that she suggested that the two
should get a hotel room together. In July 1995, Pesso returned from
a trip to Mexico and Stephens allegedly told him that he "should be
in GQ Magazine with that tan." Pesso also alleges that in December
of that year, Stephens saw him at a Christmas party and began "wig-
gling" in an excited manner. Soon after the party, she presented him
with his bonus check, shook his hand, rubbed his upper arm, and told
him that he "looked as good as ever."
Pesso further claims that in a June 1996 conversation, Stephens
made a number of objectionable statements. These included "Were
you always this handsome?"; "Were you always popular with the
girls?"; and "What sports did you play in high school?" During the
2
conversation, Pesso alleges that Stephens grabbed his arm and men-
tioned that he was muscular. In an effort to change the subject, Pesso
told Stephens that if she was serious about diet and exercise he would
put together a diet for her if she wanted. At no time prior to or during
this meeting, however, did he ever tell Stephens that her comments
were unwelcome.
After this conversation, Pesso alleges that Stephens telephoned
him. He asked if she wished to talk about her diet. In response, Ste-
phens allegedly stated that she was wondering what he would "taste
like." Pesso responded that her comment was inappropriate and ended
the conversation.
After resigning from the Hospital, Pesso filed suit against it and
Stephens. He alleged that he was constructively discharged because
of intolerable sexual harassment by Stephens. Specifically, he brought
Title VII claims of hostile work environment harassment, quid pro
quo harassment, and retaliation, as well as various state law claims.
In June 1998, the district court granted summary judgment for the
defendants. It held that a hostile work environment did not exist
because Stephens' comments were not sufficiently severe or perva-
sive. And the court found no quid pro quo harassment because Pesso
failed to show that reaction to Stephens' comments led to a change
in the terms and conditions of his employment. Nor did the court find
merit in Pesso's claim that the Hospital illegally retaliated against
him. It held that Pesso never engaged in protected activity, and in any
event he did not demonstrate any legally cognizable adverse action
taken by the Hospital against him. Further, the court concluded that
in the absence of intolerable working conditions, a claim for construc-
tive discharge could not lie. After dismissing all of Pesso's federal
claims, the court declined to exercise supplemental jurisdiction over
his state law claims. Pesso appeals.
II.
Pesso first argues that the district court erred by dismissing his
claim for the creation of a sexually hostile environment. Title VII bars
discrimination in the terms and conditions of employment on the basis
of sex. 42 U.S.C. § 2000e-2(a)(1). Although"not all workplace con-
3
duct that may be described as `harassment' affects a `term, condition,
or privilege' of employment within the meaning of Title VII," a
supervisor's "severe or pervasive" conduct may alter those terms and
conditions. Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67 (1986).
Pesso contends that Stephens, his supervisor, made comments
which were severe and pervasive and thus created a hostile working
environment. We disagree. Whether conduct is severe or pervasive
requires an examination of all of the circumstances, including "the
frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance;
and whether it unreasonably interferes with an employee's work per-
formance." Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). The
Supreme Court has noted the importance of the severe or pervasive
requirement: It "ensure[s] that courts and juries do not mistake ordi-
nary socializing in the workplace -- such as male-on-male horseplay
or intersexual flirtation -- for discriminatory`conditions of employ-
ment.'" Oncale v. Sundowner Offshore Servs., Inc., 118 S. Ct. 998,
1003 (1998).
Here, the evidence simply does not show a sexually hostile work-
ing environment. Most of Pesso's allegations amount to innocuous
interactions. And those which were more serious-- asking if he
wanted to get a hotel room at a medical conference and wondering
aloud what Pesso would "taste like" -- were neither severe nor perva-
sive. After both comments were made, Pesso was able to quickly put
an end to such talk by simply ignoring the comment or telling Ste-
phens that she was behaving inappropriately. Additionally, the two
comments were made approximately eighteen months apart. We can-
not conclude that these comments subjected Pesso to sexually hostile
working conditions which altered the terms and conditions of his
employment.1
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1 For the same reasons, we hold that Pesso was not exposed to the type
of intolerable working conditions that are required to maintain a claim
of constructive discharge. See Amirmokri v. Baltimore Gas & Elec. Co.,
60 F.3d 1126, 1132-33 (4th Cir. 1995).
4
III.
Pesso also appeals the dismissal of his claim for quid pro quo sex-
ual harassment. As an initial step in a quid pro quo case, a plaintiff
must demonstrate that he was subject to unwelcome sexual harass-
ment based upon sex and the "employee's reaction to the harassment
affected tangible aspects of the employee's compensation, terms, con-
ditions, or privileges of employment." Spencer v. General Elec. Co.,
894 F.2d 651, 658 (4th Cir. 1990), overruled on other grounds by
Farrar v. Hobby, 506 U.S. 103 (1992).
Pesso argues that he introduced evidence showing that his rebuff-
ing of Stephens' harassment led to the alteration of the terms and con-
ditions of his employment. Specifically, he notes that after he told
Stephens her comment was inappropriate, she began complaining
about the costs of his pain clinic, his call schedule was altered, and
the Hospital delayed in giving him a letter of intent to renew his con-
tract.
While evidence in the record did show that Stephens was con-
cerned about the costs of the pain clinic which was run by Pesso,
those comments were made in the context of an overall managerial
effort to trim costs and end a string of unprofitable years at the Hospi-
tal. In any event, managerial complaints about profitability do not
change the terms and conditions of employment. This is so even
when, as Pesso contends, he became so upset by the complaints that
he offered to take a pay cut.
Nor did the evidence show that Pesso's call schedule was altered.
Pesso complains that an employee in the pain clinic, Giles Bowman,
was fired in order to make it more difficult for Pesso to do his work.
Specifically, he alleges that following Bowman's termination, his call
schedule was increased, placing him on call every other day instead
of the one in three days mandated by his employment contract. This
contention, however, lacks support in the record. In fact, it is directly
contradicted by the testimony of the operating room supervisor who
swore that following Bowman's departure, Pesso was scheduled to be
on call only eleven days per month during August, September, and
October of 1996. And in November, he was scheduled for just six
days. In light of Pesso's contractual commitment to be assigned to
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"on-call rotations averaging one in three nights," Pesso adduced no
evidence that his call schedule was affected.
Lastly, Pesso complains that in July 1996, he requested a letter of
intent to renew his employment contract which was set to expire one
year later. He alleges that the Hospital's vice president of physician
services told him that he would need to confirm the renewal with Ste-
phens. Pesso then heard nothing about the matter until he announced
his resignation in September. This two month delay with respect to
an employment contract that was not set to expire for another year in
no way altered the conditions of Pesso's employment. Despite Pesso's
numerous allegations, the terms and conditions of his employment
remained unaffected by the actions of Stephens and other members of
management at the Hospital.2
IV.
For the foregoing reasons, the judgment of the district court is
hereby
AFFIRMED.3
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2 Nor do these alleged harms rise to the level of adverse employment
actions for the establishment of Title VII retaliation, 42 U.S.C. 2000e-
3(a). See Munday v. Waste Management of N. Am., Inc., 126 F.3d 239,
243 (4th Cir. 1997), cert. denied, 118 S. Ct. 1053 (1998).
3 Having affirmed the dismissal of all federal claims, we hold that the
district court did not abuse its discretion by refusing to exercise supple-
mental jurisdiction over Pesso's state law claims. 28 U.S.C. § 1367(c)(3);
Jordahl v. Democratic Party of Va., 122 F.3d 192, 203 (4th Cir. 1997),
cert. denied, 118 S. Ct. 856 (1998); see also United Mine Workers v.
Gibbs, 383 U.S. 715, 725-27 (1966).
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